U.N. Bhachawat

I. This is an application under section 438 of the Code of Criminal Procedure (hereinafter referred to as 'the new Code') for enlarging the accused-applicants (hereinafter referred to as the applicants) on bail. This application came to be filed before this court in the following manner.

2. The applicants had on 17th August, 1977, obtained anticipatory bail for the offences under sections 147, 148, 323, 294, and 330 read with section 149 of the Indian Penal Code from the Court of the First Additional Sessions Judge. Jabalpur. Thereafter, against these applicants, who were released on bail on being arrested in view of the said order of anticipatory bail, a challan was filed by the police station officer, Belkheda for the aforesaid offences in the Court of the Judicial Magistrate. Patna on 30-1-78.

3. The Judicial Magistrate Patna vide his order dated 10-8-78 sent the case to the chief Judicial Magistrate, Jabalpur. The relevant excerpt of his order is set out below:-

"Arguments before' charge heard. The allegations against the accused are such which fall within the ambit of sections 395/376, 511, 451, 397 IPC and other sections of the Indian Penal Code.

It is urged that no such case is made out against either of the accused. This argument is worthwhile before the Court in whose jurisdiction the case will go. For me, this is enough that the allegations are covered by those sections which oust the jurisdiction of this Court. The case is. Therefore sent to the Court of C. J. M. Jabalpur as per his distribution memo of criminal work for disposal according to law. The accused shall remain present in the Court of C. J. M. Jabalpur on 24-8-78."

4. The applicants moved an application for anticipatory bail in the Court of the Sessions Judge. Jabalpur for their being released on bail in the event of their being taken into custody for the offences under sections 395/376, 511, 451 and 397 of the Indian Penal Code on committal. The application was made over for decision to the Additional Sessions Judge to the Court of First Additional Sessions Judge, Jabalpur (hereinafter referred to as the Court below) who, vide his order dated 4-9-78 in Misc. Cr. Case No. 646 of 78 dismissed the application on the ground that no such application lay. To have a better grasp of the holding of the Court below, the relevant excerpts of the order are set out below:-

"At the outset I would like to say that the application is misconceived. Section 438 Cr. P.C. is a judicial check on police excesses and is certainly not applicable to the judicial act of taking an accused in custody. Direction issued to the police under sub-section (1) of section 438 Cr. P.C. for releasing an accused on bail is not binding upon a Magistrate and the general provisions of bail contained in sections 437 and 439 come into operation Section 438 Cr. P.C. is an extra-ordinary and emergent power and does not wipe out the general law of bail. No sooner an accused is directed to be released on bail under sub-section (1) of section 438 Cr, P.C., appear or is brought before the Magistrate the latter is entitled to take him in custody if he decides not to release him on bail. The direction under section 438 is no impediment in the way of the Magistrate to take him in custody. In this connection reference may be made to Kanhaiyalal Rathi v. Slate of M.P. 1977 (II) WN 184=1978 MPLJ SN 30.

An accused person can well seek direction of this Court when he has reasonable apprehension that he is likely to be arrested by a police officer in compliance with a warrant of arrest issued against him by a Judicial Magistrate. Thus sub-section (1) of section 438 Cr. P.C. comprehends both the situations namely arrest by a police officer (1) without warrant (2) with warrant. In case of apprehension of arrest without warrant direction is given by this Court to the Police officer to release the accused on bail. And in case of apprehension of arrest with warrant direction is given to the Magistrate to